Appreciation of Evidence in Sessions Cases - Justice D.Murugesan

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of law for conviction – Narinder Singh and another vs. State of Punjab – AIR 2000 (SC) 2212. Section 34 – Common intention – Sudden fight – The fatal blow caused on the head – The accused who caused fatal injury not established – The accused persons are not liable for common intention to murder. – Shri Kishan and others vs. State of U.P. – AIR 1972 SC 2056. Sections 34 and 149 – Common intention – Non framing of separate charge – Accused charged with Section 300 read with Section 149 IPC – no charge framed under Section 34 IPC – Common object of the accused persons not proved – However, common intention which was not initially in existence formed during transaction on the spot, proved – Conviction of the accused for the major offence read with Section 34 – Is permissible – Madhu Yadav and others vs. State of Bihar – AIR 2002 SC 2137. Section 34 and 300 – Common intention – Overt act – Infliction of solitary blow on the neck of deceased with sharp edged weapon – Acquittal of co-accused persons – No evidence on record to prove as to who delivered the fatal blow – The accused in question cannot be convicted for sharing the common intention to murder – Ramachandra Ohdar vs. State of Bihar – AIR 1999 SC 998. (c) Difference between Common Object with Common Intention:- In Chittarmal vs. State of Rajasthan – AIR 2003 SC 796 the Hon’ble Apex Court has held that, “It is well settled that Section 34 as well as Section 149 deal with liability for constructive criminality i.e. vicarious liability of a person for acts of others. Both the sections deal with combinations of persons who become punishable as sharers in an offence. Thus they have a certain resemblance and may to some extent overlap. But a clear distinction between common intention and common object is that common intention denotes action in concert and necessarily postulates the existence of a prearranged plan implying a prior meeting of the minds, while common object does not necessarily require proof of prior meeting of minds or preconcert. Though there is a substantial difference between the two sections, they also to some extent overlap and it is a question to be determined on the fact of each case whether the charge under Section 149 overlaps the ground covered by Section 34. Thus, if several persons numbering five or more, do an act and intend to do it, both Section 34 and Section 149 may apply. If the common object does not involve a common intention, then the substitution of Section 34 for Section 149 might result in prejudice to the accused and ought not, therefore, to be permitted. But if it does not involve a common intention, then the substitution of Section 34 for Section 149 must be held to be a formal matter. Whether such recourse can be had or not must depend on the facts of each case. The non-applicability of Section 149 is, therefore, no bar in convicting the appellants under Section 302 read with Section 34 IPC, if the evidence discloses commission of an offence in furtherance of the common intention of them all.” To Constitute common intention it is necessary that intention of each one of them and shared by them. Undoubtedly it is difficult thing to prove even the intention of an individual and therefore it is all more difficult to show a common intention of a group of persons . but however difficult may be the task the prosecution must lead evidence of facts circumstances and conduct of 28
the accused from which their common intention can be safely gathered. Aizaz and others State of U.P. 2008 Cri.L.J 4374. Common object In the present case the first information report as also the evidences of as many as six eye witnesses clearly reveals that all the eleven accused came in a group. All of them were armed with deadly weapons although the actual overt act had been attributed to some of the accused. Ever if we do not putentire reliance on the said statements the very fact hat the deceased received as many as 20 injuries is itself sufficient to show that all the accused persons not only came to the place of occurrence upon forming an un lawful assembly but also had the requisite common object to kill the deceased. Forming of a common object must be inferred upon taking into consideration the entire situation. Sivappa and others vs state of Karnataka 2008 Cri.L.J 2992 Common object and Common intention difference Common object is different from common intention as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number in five or more and that they act as an assembly to achieve that object State of Karnataka vs Chikkahottappa @ Varada Gowda and others 2008 Cri.L.J 3495 29
Page 1: APPRECIATION OF EVIDENCE IN SESSION
Page 5 and 6: APPRECIATION OF EVIDENCE INTRODUCTI
Page 7 and 8: case mainly based on the appreciati
Page 9 and 10: the weapons, if any, used, as also
Page 11 and 12: (2). INQUEST REPORT (A). Scope and
Page 13 and 14: (4). CONFESSION (a). What is Confes
Page 15 and 16: (5). EXTRA - JUDICIAL CONFESSION Co
Page 17 and 18: Scope and applicability of Extra-Ju
Page 19 and 20: (6) CONFESSION OF CO-ACCUSED - RETR
Page 21 and 22: discovered is admissible. The rest
Page 23 and 24: Para 21. At one time it was held th
Page 25 and 26: necessarily be made to a Magistrate
Page 27 and 28: Section 32 - Multiple dying declara
Page 29 and 30: declaration be excluded it will res
Page 31: (10) COMMON INTENTION AND COMMON OB
Page 35 and 36: “Section 120-A reveals that a cri
Page 37 and 38: (g) Witness already seen the accuse
Page 39 and 40: (13) EXPERT OPINION (a) Doctor’s
Page 41 and 42: foot print is not a fully developed
Page 43 and 44: (15) CIRCUMSTANTIAL EVIDENCE Sectio
Page 45 and 46: The circumstantial evidence in orde
Page 47 and 48: otherwise found to be credible, esp
Page 49 and 50: (18) WITNESSES (a). Sole eye-witnes
Page 51 and 52: …. '14. But it would, we think, b

Appreciation of Evidence in Sessions Cases - Justice D.Murugesan

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